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Employers should explore alternative options for each worker individually
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Did the Department of Homeland Security (DHS) have the authority to rescind the Deferred Action for Childhood Arrivals (DACA) program? The 9th U.S. Circuit Court of Appeals heard oral arguments in a case challenging the agency's decision.
President Barack Obama's administration launched the DACA program in 2012 to provide temporary work authorization to certain undocumented immigrants who came to the United States as children.
The DHS announced its decision to rescind DACA in September 2017 under President Donald Trump. A federal judge, however, issued a preliminary injunction and ordered the government to continue processing DACA application renewals while the court resolves a legal challenge to the agency's decision. The 9th Circuit is reviewing an appeal of that order.
[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]
"Basically, a partial injunction was granted with the effect of continuing the DACA program for an unknown period of time," said Mitch Wexler, an attorney with Fragomen in Los Angeles and Irvine, Calif. "There is similar litigation occurring around the country, so eventually the U.S. Supreme Court will need to decide."
For now, employers should continue to do what they have been doing for their DACA employees. They should not discharge workers with valid employment authorization documents and should not retain those with expired documents.
Employers should address each worker individually to see who may be eligible for other employment-authorized immigration categories, Wexler said.
They should also consider engaging in efforts to explain to Congress and the administration the role that DACA workers play in the U.S. economy and the consequences of losing them, said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan.
Subject to Review?
Rescinding DACA was a rational enforcement decision that fell within the agency's discretion, said Hashim Mooppan, an attorney for the federal government, to a three-judge panel in Pasadena, Calif., on May 15.
Jeffrey Davidson, however, argued that the government's decision to rescind DACA was based on an incorrect conclusion of law, and therefore, the district court's injunction that allowed the DACA program to continue was correctly issued.
"It is the quintessential role of the courts to review those conclusions of law and make sure that agencies are abiding by the law," said Davidson, an attorney with Covington & Burling in San Francisco who represents the University of California in the case.
U.S. Attorney General Jeff Sessions announced in September 2017 that DACA would be rescinded and unwound over a six-month period. "[T]he executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions," he said. "Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch."
Sessions mentioned that a Texas court had found that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was unlawful and that the 5th Circuit agreed. "If we were to keep the Obama administration's executive amnesty policy, the likeliest outcome is that it would be enjoined just as was DAPA," Sessions said.
During the oral arguments, Judge Kim McLane Wardlaw noted that the decision to rescind DACA appears entirely based on Sessions' conclusion that, since the 5th Circuit found DAPA unlawful, DACA was unlawful, too. "What if that is wrong as a matter of law? Can the decision to rescind stand?" she asked Mooppan.
He responded that the decision to rescind DACA is not reviewable by the court. The plaintiffs can't say that the government violated the Immigration and Nationality Act (INA) by getting rid of DACA because the INA doesn't say a single word about DACA, he said.
It is the government's position that DACA exceeds the agency's scope of prosecutorial discretion for a policy of such sweeping magnitude, he said. It is perfectly rational for the government to decide not to maintain a policy that may be unlawful, he added.
Opposing counsel said that the DACA program is a valid exercise of the agency's authority under the INA. When the DHS decides to change its long-standing position, it needs to explain why, said Michael Mongan, a deputy solicitor general for California. The government didn't explain why it concluded that DACA is unconstitutional, he said.
The INA gives the DHS broad authority to establish national immigration enforcement policies and priorities. One way that's been done is by establishing discretionary immigration relief for certain categories of cases, he added.
The Administrative Procedure Act requires certain agency actions to be reasonably explained. When the government reverses a prior policy, it needs to consider the interest of the people affected by the change, Davidson said. The government didn't say anything about the welfare of DACA recipients, their families or their employers, he added. There are about 700,000 DACA recipients.
Employers are concerned about losing their DACA workers, Mdivani said. With unemployment being as low as it is now, especially in rural counties in the Midwest, employers are worried about having to scale down production and relocate businesses abroad. "Unavailability of practical options that may address the issue in a reasonable time period is frustrating to employers," she added.
The big challenge with DACA employees is that many are subject to a three- or 10-year bar on obtaining another visa status or a green card, Wexler noted. Still, there are many recipients who are not subject to the bar.
Strategic options include looking at nationality-specific work visa categories such as the TN visa for Canadian and Mexican workers and the E-3 visa for Australian workers.
If a proactive strategy isn't available, employers should start thinking about backfilling those roles when the time comes, Wexler said.
However, they should keep in mind that they need to comply with Form I-9 employment verification procedures and should not discriminate against DACA recipients with valid work permits.
The case is Regents of the University of California v. Department of Homeland Security, 9th Cir, No. 18-15068.
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